Filed 1/3/18 In re Justin R. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

In re JUSTIN R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN R.,

Defendant and Appellant.

F075443

(Super. Ct. No. 514364)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Edward M. Lacy, Jr.,† and Rubén A. Villalobos, Judges.‡
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Justin R., age 14, was adjudged a ward of the court (Welf. & Inst. Code, § 602) following his admission of grand theft (Pen. Code, § 487, subd. (d)(2); count I), possession of a concealed stolen firearm (id., § 25400, subd. (c)(2); count II), and first degree burglary (id., § 459; count III). He was placed on probation on various terms and conditions and now appeals, contending his motion to suppress evidence (Welf. & Inst. Code, § 700.1) should have been granted. We disagree and affirm.
FACTS
At approximately 4:00 p.m. on December 27, 2016, Stanislaus County Sheriff’s Deputy Letras, a field training officer, was on patrol with Deputy Christianson, a trainee. Christianson was driving their patrol vehicle; Letras was the passenger.
As the officers prepared to turn onto McHenry Avenue, they saw a group of at least six or seven people circling around in the front parking lot of Wendy’s. The subjects were spread over a broad area, with some actually a bit in the roadway on McHenry. The officers could see subjects yelling, although they could not tell if there was, was about to be, or had been a fight. In addition, there was a white, four-door Cadillac parked in the lot, although not in a parking spot. Three of the four doors, including the front driver’s side door, were open, as if the vehicle had been abandoned. It had a paper plate rather than a license plate. This caused Letras concern in that, had the Cadillac left and something happened, he would want to broadcast as much information as he could for officers’ safety. In giving a vehicle description, he would not have been able to give a license number.
The officers needed to determine what was occurring, so Christianson activated the patrol vehicle’s emergency lights. He pulled up behind the Cadillac on the assumption the people were associated with it. Letras radioed the deputies’ location and that they had a large group of people, arguing. As soon as the officers jumped out of the car, he also requested that additional units respond for officers’ safety, as it was a tense situation and he and Christianson were outnumbered.
As the officers exited their vehicle, three males immediately started heading toward the Cadillac. Believing they were going to jump in the car and leave, Christianson addressed them, while Letras began dealing with the other individuals — two males and a female — who appeared to be involved. Letras wanted to gain some type of compliance and separate the parties so the officers could deescalate whatever was going on. He was waiting for additional units to arrive, because he and Christianson were outnumbered and there was still some shouting back and forth between the two groups.
According to Letras, when Modesto Police Officer Ramirez arrived, Letras told him the parties had been in a fight and asked him to begin patting down one group while Letras patted down the other group. Letras and Christianson had not frisked anyone yet, because they had been watching both groups and keeping them separated. Letras wanted everyone patted down, because there were six or seven people involved in the altercation; emotions and tensions were high and the people were yelling back and forth at each other when he and Christianson first arrived; several parties had retreated toward the white vehicle; people were still emotional and upset; and officers had to investigate and speak with multiple parties. Thus, for officers’ safety, he wanted people frisked to make sure no one had any weapons.
According to Ramirez, Letras directed him to watch the three males who were near the Cadillac. Letras said they had not been patted down yet. Justin was one of these three males.
Letras finished patting down members of the other group, then focused on one of the three males and asked for registration for the vehicle. At that point, the male farthest from Ramirez turned around and started toward the car. Based on Ramirez’s information that the group had been in some type of altercation, officers were not going to let anybody get back into the car. It had not been searched or secured, officers did not know what was in it, and nobody had asked that male to go to the vehicle. As Letras walked toward that male, Ramirez decided, based on his training and experience, that the other males should be patted down and “made safe.”
Ramirez started with Justin, who was closest to him. Ramirez asked him to turn around and face away from Ramirez, and whether he had any weapons or anything illegal on him. Justin faced away like he was told, but asked if he was under arrest and what he did instead of answering the question. Ramirez took hold of his wrists behind his back. He did not handcuff Justin, who was detained but not under arrest, but held onto him with one hand while frisking him with the other. Justin was wearing a long, red-checkered shirt that extended to about the mid-thigh area, and Ramirez was unable to view his waistband area.
As Ramirez was conducting the pat search, he felt something hard in the front right hip pocket or waistband area. He squeezed it to try to determine what it was, and realized it likely was a pistol. He readjusted his grip on Justin so Justin could not move his arms, and notified the other officers there was a gun. Once Letras came over to assist, Ramirez handcuffed Justin and the object was removed. It was a .45-caliber semiautomatic pistol with seven live rounds in the magazine and a live round in the chamber.
DISCUSSION
In ruling on the motion to suppress, the juvenile court stated:
“There’s two issues here. Did the officers have reasonable grounds to detain the large group of people? And based on what officer saw, the answer is clearly yes. That’s for public safety to prevent . . . that conduct from escalating into criminal activity, if it had already not been criminal. There’s no question on that one.
“The question is: Did what the officers saw then give them reasonable grounds to do a pat down search? And it appears that . . . based on what [the officers] saw when they walked up and separated the two groups and the two groups continued to yell at each other, at that point the officers determined, for officers’ safety purpose, they had grounds to do the pat downs. [¶] . . . [¶]
“. . . [T]he fact that the officers were considerably outnumbered, that there was some violence involved — the officers being outnumbered, that is certainly an officers’ safety issue, and the fact that there was or appeared to be violence involved, there’s a reasonable suspicion that those involved could be possessing weapons. With those comments, I will deny the motion to suppress.”
“The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.) This standard applies to juvenile court proceedings. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)
The Fourth Amendment forbids unreasonable searches and seizures. (Terry v. Ohio (1968) 392 U.S. 1, 9 (Terry).) A detention constitutes a seizure. It occurs “when the officer, by means of force or show of authority, has restrained a person’s liberty. [Citation.]” (People v. Zaragoza (2016) 1 Cal.5th 21, 56.) The Attorney General does not dispute Justin was detained.
“ ‘A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’ [Citation.]” (People v. Casares (2016) 62 Cal.4th 808, 837-838; accord, Terry, supra, 392 U.S. at p. 22; In re Tony C. (1978) 21 Cal.3d 888, 893.) A detention predicated on “mere curiosity, rumor, or hunch is unlawful . . . .” (Tony C., supra, at p. 893; accord, Terry, supra, at p. 22.)
In the present case, Letras and Christianson saw at least a verbal altercation, involving multiple individuals, occurring in the front parking lot of a business that was likely to have customers at that time of day. The disturbance was heated enough that it was spilling out onto the street. A vehicle was parked where it did not belong and three of its doors were open, as if it had rapidly pulled up and its three occupants immediately got out. Justin was one of the three associated with that car, and he and his two companions attempted to leave as soon as they saw the deputies arrive. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124 [flight is suggestive of wrongdoing and is one factor to be considered in determining reasonable cause to detain]; People v. Souza (1994) 9 Cal.4th 224, 233 [same].) The situation continued to be tense and volatile, with continued verbal aggression on both sides, even after the two groups were separated. Under the circumstances, officers reasonably could conclude criminal activity had occurred or was about to occur, and that Justin was involved. (Tony C., supra, 21 Cal.3d at p. 893; see Terry, supra, 392 U.S. at pp. 21-22.) Accordingly, the detention was lawful.
The ensuing patdown of Justin also was lawful. As this court has explained: “ ‘When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,’ the officer may ‘take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.’ [Citation.] This is so regardless of whether the officer has probable cause to arrest the individual for a crime. [Citation.] ‘The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonable prudent [person] in the circumstances would be warranted in the belief that his safety or that of others was in danger. [Citations.] And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation.]’ [Citation.] In short, the officer ‘must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant’ the intrusion. [Citation.]” (People v. Rios (2011) 193 Cal.App.4th 584, 598-599; see Terry, supra, 392 U.S. at pp. 21, 24, 27.)
“ ‘The judiciary should not lightly second-guess a police officer’s decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.]’ [Citation.]” (People v. Collier (2008) 166 Cal.App.4th 1374, 1378.) “The officer has an immediate interest in taking steps to ensure that the person stopped ‘is not armed with a weapon that could unexpectedly and fatally be used’ against the officer. [Citation.]” (In re H.M. (2008) 167 Cal.App.4th 136, 143.) “The Fourth Amendment has never been interpreted to ‘ “require that police officers take unnecessary risks in the performance of their duties.” [Citation.]’ [Citation.]” (People v. Collier, supra, at p. 1378.)
At the time Justin was frisked, officers were investigating a still-volatile situation that had a potential for violence. The officers, who were outnumbered, were in close proximity to Justin and his companions, who were involved in that situation. One of Justin’s companions started to walk toward the unsearched, unsecured Cadillac, the doors of which were open, without being directed to do so. Justin himself was wearing a long, red-checkered shirt that made it impossible to tell by looking whether he had anything in his waistband area, and he did not answer when asked if he had any weapons. “All of these factors, although perhaps individually harmless, could reasonably combine to create fear in a detaining officer. The Terry test does not look to the individual details in its search for a reasonable belief that one’s safety is in danger; rather it looks to the ‘totality of the circumstances.’ [Citation.] In the instant case, it seems reasonable that these circumstances could generate a belief in a police officer that his safety was in danger.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1074; see People v. Mendoza (2011) 52 Cal.4th 1056, 1082.)
DISPOSITION
The judgment is affirmed.